EXHIBIT 10.6
AMENDED INVESTOR RIGHTS DECLARATION
THIS AMENDED INVESTOR RIGHTS DECLARATION (the "Amended
Declaration") is entered into effective the 28th day of December, 2001, by and
between AspenBio, Inc., a Colorado corporation (the "Company") and the
shareholders listed on the signature page hereto (the "Shareholders").
RECITALS
In July 2001 the Company agreed to sell shares of the Common Stock of
the Company to the Shareholders. As part of that transaction, the Company
discussed with the Shareholders that certain Investor Rights Declaration,
attached hereto as Exhibit A (the "Investor Rights Declaration") which set forth
certain recommended rights and obligations of the Company and the Shareholders.
On December 28, 2001, the Company entered into a Securities Purchase Agreement
with Cambridge Holdings, Ltd. ("Cambridge" and the "Securities Purchase
Agreement"). The Company, with the assistance of Cambridge, intends to become a
reporting company under the provisions of Section 13 or 15(d) of the Securities
Exchange Act of 1934 (the "Initial Registration"). As part of the Securities
Purchase Agreement, the Company agreed to provide certain rights to Cambridge
including piggyback registration rights. The parties hereto have entered into
this Amended Declaration in order to waive any rights the Shareholders may have
under the Investor Rights Declaration and to provide the Shareholders with the
same piggyback registration rights as those received by Cambridge.
STATEMENT OF AGREEMENT
NOW THEREFORE, in consideration of the premises and of the respective
covenants and provisions herein contained, and intending to be legally bound
hereby, the Parties agree as follows:
1. Certain Definitions.
As used in this Amended Declaration, the following terms shall have the
meanings ascribed to them below:
"Affiliate" means (i) with respect to any Person, any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person or (ii) with respect to any
individual, the spouse, child, step-child, grandchild, niece, nephew or parent
of such Person, or the spouse thereof.
"Common Stock" means the Common Stock of the Company and any equity
securities issued or issuable with respect to the Common Stock in connection
with a reclassification, recapitalization, merger, consolidation or other
reorganization.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Holder" means any Person owning of record Registrable Securities that
have not been sold to the public.
"Person" means any individual, corporation, limited liability company,
limited or general partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivisions thereof.
"Registrable Securities" means any (i) of the Shares of the Common Stock
purchased by the Shareholders, and (ii) any other shares of Common Stock issued
or issuable, directly or indirectly, with respect to the Common Stock referenced
in clause (i) or by way of stock dividend, stock split or combination of shares.
As to any particular Registrable Securities, such securities shall cease to be
Registrable Securities when (a) such securities shall be been disposed of in
accordance with a registration described in Section 2.1 herein ("Piggyback
Registration"), or (b) such securities shall have been sold pursuant to Rule 144
(or any successor provision) under the Securities Act, or (c) such securities
are eligible for sale under Rule 144(k) (or any successor provision) under the
Securities Act. Provided, however, that Registrable Securities which otherwise
would cease to be considered Registrable Securities as a result of item (a)
above shall remain Registrable Securities solely for the purposes of Section 2.1
herein.
"SEC" means the United States Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
2. Registration Rights.
2.1 Piggyback Registrations.
(a) Piggyback Registrations. Except with respect to
the Initial Registration, if, at any time after September 30, 2002 and
prior to June 30, 2007 the Company proposes to register its Common Stock
under the Securities Act in connection with the public offering of
Common Stock (other than a registration relating solely to the sale of
Common Stock to participants in an employee benefit plan or with respect
to any corporate reorganization or other transaction under Rule 145 of
the Securities Act) whether or not for its own account, the Company
shall give prompt written notice of its intention to do so to the
Holders. Upon the written request of any of the Holders made within 15
days following the receipt of any such written notice (which request
shall specify the Registrable Securities intended to be disposed of by
the Holders and the intended method of distribution thereof), the
Company shall use commercially reasonable efforts to cause all such
Registrable Securities to be registered under the Securities Act (with
the securities which the Company at the time proposes to register) to
permit the sale or other disposition by the Holders (in accordance with
the intended method of distribution thereof) of the Registrable
Securities to be so registered.
(b) Abandonment or Delay. If, at any time after
giving written notice of its intention to register its Common Stock and
prior to the effective date of the
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registration statement filed in connection with such registration, the
Company shall determine for any reason not to register or to delay
registration of its Common Stock, the Company may, at its election, give
written notice of such determination to all Holders and (i) in the case
of a determination not to register, shall be relieved of its obligation
to register any Registrable Securities in connection with such abandoned
registration, without prejudice, however, to the rights of Holders under
Section 2.1(a), and (ii) in the case of a determination to delay such
registration of its Common Stock shall be permitted to delay the
registration of such Registrable Securities for the same period as the
delay in registering its Common Stock.
(c) Holder's Right to Withdraw. Any Holder shall
have the right to withdraw its request for inclusion of its Registrable
Securities in any registration statement pursuant to this Section 2.1 by
giving written notice to the Company of its request to withdraw.
(d) Underwriting Requirements. In connection with
any offering involving an underwriting of the Common Stock, the Company
shall not be required under Section 2.1 to include any of the
Registrable Securities in such underwriting unless the Holders accept
the terms of the underwriting as agreed upon between the Company and the
underwriters selected by it (or by other persons entitled to select the
underwriters), and then only in such quantity as the underwriters
determine in their sole discretion will not jeopardize the success of
the offering by the Company. If the total amount of securities,
including Registrable Securities, requested by persons to be included in
such offering exceeds the amount of securities that the underwriters
determine in their sole discretion is compatible with the success of the
offering, then the Company shall be required to include in the offering
only that number of shares of Common Stock, including Registrable
Securities, which the underwriters determine in their discretion will
not jeopardize the success of the offering (the securities so included
to be apportioned pro rata among the Persons according to the total
amount of securities entitled to be included therein owned by each
Person or in such proportions as shall mutually be agreed to by such
Persons. In the event that the underwriters determine that the total
amount of securities requested to be included in the offering exceeds
the amount that the underwriters determine is compatible with the
success of the offering, then the underwriters shall provide written
notice of such determination to the Holders.
2.2 Registration Procedures. If and whenever the Company is
required by the provisions of this Amended Declaration to use commercially
reasonable efforts to effect or cause the registration of any Registrable
Securities under the Securities Act as provided in this Amended Declaration, the
Company shall, as expeditiously as possible:
(a) prepare and file with the SEC a registration
statement on an appropriate registration form of the SEC for the
disposition of such Registrable Securities in accordance with the
intended method of disposition thereof, which form (i) shall be selected
by the Company and (ii) shall, in the case of a shelf registration, be
available for the sale of the Registrable Securities by the Holders and
such registration statement shall comply as to form in all material
respects with the requirements of the applicable form
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and include all financial statements required by the SEC to be filed
therewith, and the Company shall use its best efforts to cause such
registration statement to become effective (provided, however, that
before filing a registration statement or prospectus or any amendments
or supplements thereto, or comparable statements under securities or
blue sky laws of any jurisdiction, the Company will furnish to one
counsel for the Holders participating in the planned offering and the
underwriters, if any, copies of all such documents proposed to be filed
(including all exhibits thereto), which documents will be subject to the
reasonable review and reasonable comment of such counsel, and the
Company shall not file any registration statement or amendment thereto
or any prospectus or supplement thereto to which the underwriters, if
any, shall reasonably object in writing);
(b) prepare and file with the SEC such amendments
and supplements to such registration statement and the prospectus used
in connection therewith as may be necessary to keep such registration
statement effective for such period (which shall not be required to
exceed 90 days unless mutually agreed to in writing by the parties) as
any seller of Registrable Securities pursuant to such registration
statement shall request and to comply with the provisions of the
Securities Act with respect to the sale or other disposition of all
Registrable Securities covered by such registration statement in
accordance with the intended methods of disposition by the seller or
sellers thereof set forth in such registration statement;
(c) furnish, without charge, to each seller of such
Registrable Securities and each underwriter, if any, of the securities
covered by such registration statement such number of copies of such
registration statement, each amendment and supplement thereto (in each
case including all exhibits), and the prospectus included in such
registration statement (including each preliminary prospectus) in
conformity with the requirements of the Securities Act, and other
documents, as such seller and underwriter may reasonably request in
order to facilitate the public sale or other disposition of the
Registrable Securities owned by such seller (the Company hereby
consenting to the use in accordance with applicable law of each such
registration statement (or amendment or post-effective amendment
thereto) and each such prospectus (or preliminary prospectus or
supplement thereto) by each such seller of Registrable Securities and
the underwriters, if any, in connection with the offering and sale of
the Registrable Securities covered by such registration statement or
prospectus);
(d) use its best efforts to register or qualify the
Registrable Securities covered by such registration statement under such
other securities or "blue sky" laws of such jurisdictions as any sellers
of Registrable Securities or any managing underwriter, if any, shall
reasonably request in writing, and do any and all other acts and things
which may be reasonably necessary or advisable to enable such sellers or
underwriter, if any, to consummate the disposition of the Registrable
Securities in such jurisdictions, except that in no event shall the
Company be required to qualify to do business as a foreign corporation
in any jurisdiction where it would not, but for the requirements of this
paragraph (d), be required to be so qualified, to subject itself to
taxation in any such jurisdiction or to consent to general service of
process in any such jurisdiction;
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(e) promptly notify each Holder selling Registrable
Securities covered by such registration statement and each managing
underwriter, if any: (i) when the registration statement, any
pre-effective amendment, the prospectus or any prospectus supplement
related thereto or post-effective amendment to the registration
statement has been filed and, with respect to the registration statement
or any post-effective amendment, when the same has become effective;
(ii) of any request by the SEC or state securities authority for
amendments or supplements to the registration statement or the
prospectus related thereto or for additional information; (iii) of the
issuance by the SEC of any stop order suspending the effectiveness of
the registration statement or the initiation of any proceedings for that
purpose; (iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of any Registrable
Securities for sale under the securities or blue sky laws of any
jurisdiction or the initiation of any proceeding for such purpose; (v)
of the existence of any fact of which the Company becomes aware which
results in the registration statement, the prospectus related thereto or
any document incorporated therein by reference containing an untrue
statement of a material fact or omitting to state a material fact
required to be stated therein or necessary to make any statement therein
not misleading; and (vi) if at any time the representations and
warranties contemplated by Section 3 below cease to be true and correct
in all material respects, and, if the notification relates to an event
described in clause (v), the Company shall promptly prepare and furnish
to each such seller and each underwriter, if any, a reasonable number of
copies of a prospectus supplemented or amended so that, as thereafter
delivered to the Shareholders of such Registrable Securities, such
prospectus shall not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary
to make the statements therein in the light of the circumstances under
which they were made not misleading;
(f) enter into such customary agreements (including,
if applicable, an underwriting agreement) and take such other actions as
the Holders participating in such offering shall reasonably request in
order to expedite or facilitate the disposition of such Registrable
Securities. The Holders of the Registrable Securities which are to be
distributed by such underwriters shall be parties to such underwriting
agreement and may, at their option, require that the Company make to and
for the benefit of such Holders the representations, warranties and
covenants of the Company which are being made to and for the benefit of
such underwriters and which are of the type customarily provided in
secondary offerings;
(g) if an opinion from the Company's counsel is
delivered to any underwriters in the offering, the Company shall furnish
to the Holders of Registrable Securities participating in the offering,
a copy of such opinion and letter addressed to such Holders;
(h) delivery promptly to the Holders of Registrable
Securities participating in the offering and each underwriter, if any,
copies of all correspondence between the Commission and the Company, its
counsel or auditors and any memoranda relating to discussions with the
Commission or its staff with respect to the registration statement,
other than those portions of any such memoranda which contain
information
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subject to attorney-client privilege with respect to the Company, and,
upon receipt of such confidentiality agreements as the Company may
reasonably request, make reasonably available for inspection by any
seller of such Registrable Securities covered by such registration
statement, by any underwriter, if any, participating in any disposition
to be effected pursuant to such registration statement and by any
attorney, accountant or other agent retained by any such seller or any
such underwriter, all pertinent financial and other records, pertinent
corporate documents and properties of the Company, and cause all of the
Company's officers, directors and employees to supply all information
reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement
provided the recipient of such information seeks such information in
good faith and for a proper purpose;
(i) make reasonably available its employees and
personnel and otherwise provide reasonable assistance to the
underwriters (taking into account the needs to the Company's businesses
and the requirements of the marketing process) in the marketing of
Registrable Securities in any underwritten offering;
(j) cooperate with the Holders of Registrable
Securities and the managing underwriters, if any, to facilitate the
timely preparation and delivery of certificates not bearing any
restrictive legends representing the Registrable Securities to be sold,
and cause such Registrable Securities to be issued in such denominations
and registered in such names in accordance with the underwriting
agreement prior to any sale of Registrable Securities to the
underwriters or, if not an underwritten offering, in accordance with the
instructions of the selling holders of the Registrable Securities at
least three business days prior to any sale of Registrable Securities;
and
(k) take all such other commercially reasonable
actions as are necessary or advisable in order to expedite or facilitate
the disposition of such Registrable Securities.
2.3 Registration Expenses.
(a) "Expenses" shall mean any and all fees and
expenses incident to the Company's performance of or compliance with
this Article 2, including, without limitation: (i) SEC, stock exchange
or NASD registration, listing and filing fees and all listing fees and
fees with respect to the including of securities in NASDAQ, (ii) fees
and expenses of compliance with state securities or "blue sky" laws and
in connection with the preparation of a "blue sky" survey, including
without limitation, reasonable fees and expenses of blue sky counsel,
(iii) printing and copying expenses, (iv) messenger and delivery
expenses, (v) fees and disbursements of counsel for the Company, (vi)
fees and disbursements of all independent public accountants (including
the expenses of any audit and/or "cold comfort" letter) and fees and
expenses of other persons, including special experts, retained by the
Company, and (vii) any other fees and disbursements of underwriters, if
any, customarily paid by issuers or sellers of securities (collectively,
"Expenses").
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(b) The Company shall pay all Expenses with respect
to any to any registration effected under Section 2.1, whether or not it
becomes effective or remains effective for the period contemplated by
Section 2.2(b).
(c) Notwithstanding the foregoing, (x) the
provisions of this Section 2.3 shall be deemed amended to the extent
necessary to cause these expense provisions to comply with "blue sky"
laws of each state in which the offering is made and (y) in connection
with any registration hereunder, each Holder of Registrable Securities
being registered shall pay all underwriting discounts and commissions
and any transfer taxes, if any, attributable to the sale of such
Registrable Securities, pro rata with respect to payments of discounts
and commissions in accordance with the number of shares sold in the
offering by such Holder, and (z) the Company shall, in the case of all
registrations under this Article 2, be responsible for all its internal
expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties).
2.4 Furnish Information. It shall be a condition precedent
to the obligations of the Company to take any action pursuant to this Section 2
with respect to the Registrable Securities of any Holder that such Holder shall
furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be required to effect the registration of such Holder's Registrable
Securities.
2.5 Indemnification.
(a) In the event of any registration of any
securities of the Company under the Securities Act pursuant to this
Article 2, the Company will, and hereby does, indemnify and hold
harmless, to the fullest extent permitted by law, each Holder of
Registrable Securities, its directors, officers and representatives, and
each other person, if any, who controls such Holder within the meaning
of the Securities Act, against any and all losses, claims, damages or
liabilities, joint or several, actions or proceedings (whether commenced
or threatened) in respect thereof ("Claims") and expenses (including
reasonable fees of counsel and any amounts paid in any settlement
effected with the Company's consent, which consent shall not be
unreasonably withheld or delayed) to which each such indemnified party
may become subject under the Securities Act or otherwise, insofar as
such Claims or expenses arise out of or are based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in
any registration statement under which such securities were registered
under the Securities Act, together with the documents incorporated by
reference therein, or the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, or (ii) any untrue statement or
alleged untrue statement of a material fact contained in any
preliminary, final or summary prospectus or any amendment or supplement
thereto, together with the documents incorporated by reference therein,
or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
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provided, however, that the Company shall not be liable to any such
indemnified party in any such case to the extent such Claim or expense
arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact or omission or alleged omission of a
material fact in such registration statement or amendment thereof or
supplement thereto or in any such prospectus or any preliminary, final
or summary prospectus in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such indemnified
party specifically for use therein. Such indemnity and reimbursement of
expenses shall remain in full force and effect regardless of any
investigation made by or on behalf of such indemnified party and shall
survive the transfer of such securities by such seller.
(b) In the event of any registration of any
securities of the Company under the Securities Act pursuant to this
Article 2, the Holders of Registrable Securities will, and hereby
indemnify and hold harmless, to the fullest extent permitted by law, the
Company, its shareholders, directors, officers, agents and
representatives, and each other person, if any, who controls the Company
within the meaning of the Securities Act, against any and all losses,
claims, damages or liabilities, joint or several, actions or proceedings
(whether commenced or threatened) in respect thereof ("Claims") and
expenses (including reasonable fees of counsel and any amounts paid in
any settlement effected with the Holders' consent, which consent shall
not be unreasonably withheld or delayed) to which each such indemnified
party may become subject under the Securities Act or otherwise, insofar
as such Claims or expenses arise out of or are based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in
any registration statement under which such securities were registered
under the Securities Act, together with the documents incorporated by
reference therein, or the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, or (ii) any untrue statement or
alleged untrue statement of a material fact contained in any
preliminary, final or summary prospectus or any amendment or supplement
thereto, together with the documents incorporated by reference therein,
or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Holders shall not
be liable to any such indemnified party in any such case to the extent
such Claim or expense arises out of or is based upon any untrue
statement or alleged untrue statement of a material fact or omission or
alleged omission of a material fact in such registration statement or
amendment thereof or supplement thereto or in any such prospectus or any
preliminary, final or summary prospectus unless it is contained in the
written information furnished to the Company by or on behalf of such
Holder specifically for use therein; provided, further, that the
obligation to indemnify will be individual to each Holder and will be
limited to the amount of proceeds received by such Holder from the sale
of Registrable Securities pursuant to such registration statement. Such
indemnity and reimbursement of expenses shall remain in full force and
effect regardless of any investigation made by or on behalf of such
indemnified party and shall survive the transfer of such securities by
such seller.
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(c) Any person entitled to indemnification under
this Amended Declaration shall notify promptly the indemnifying party in
writing of the commencement of any action or proceeding with respect to
which a claim for indemnification may be made pursuant to this Section
2.5, but the failure of any indemnified party to provide such notice
shall not relieve the indemnifying party of its obligations under the
preceding paragraphs of this Section 2.5, except to the extent the
indemnifying party is materially prejudiced thereby and shall not
relieve the indemnifying party from any liability which it may have to
any indemnified party otherwise than under this Section 2. In case any
action or proceeding is brought against an indemnified party and it
shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, unless
in the reasonable opinion of outside counsel to the indemnified party a
conflict of interest between such indemnified and indemnifying parties
may exist in respect of such claim, to assume the defense thereof
jointly with any other indemnifying party similarly noticed, to the
extent that it chooses, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party that it so chooses, the indemnifying party shall not
be liable to such indemnified party for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided,
however, that (i) if the indemnifying party fails to take reasonable
steps necessary to defend diligently the action or proceeding within 20
days after receiving notice from such indemnified party that the
indemnified party believes it has failed to do so; or (ii) if such
indemnified party who is a defendant in any action or proceeding which
is also brought against the indemnifying party reasonably shall have
concluded that there may be one or more legal defenses available to such
indemnified party which are not available to the indemnifying party; or
(iii) if representation of both parties by the same counsel is otherwise
inappropriate under applicable standards of professional conduct, then,
in any such case, the indemnified party shall have the right to assume
or continue its own defense as set forth above, and the indemnifying
party shall be liable for any expenses therefor. No indemnifying party
shall, without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of
which indemnification or contribution may be sought hereunder (whether
or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (A)
includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (B) does not include a
statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of any indemnified party.
(d) If for any reason the foregoing indemnity is
unavailable or is insufficient to hold harmless an indemnified party
under Sections 2.5 or each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of any
Claim in such proportion as is appropriate to reflect the relative fault
of the indemnifying party, on the one hand, and the indemnified party,
on the other hand, with respect to such offering of securities. The
relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a
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material fact or the omission or alleged omission to state a material
fact relates to information supplied by the indemnifying party or the
indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement
or omission. If, however, the allocation provided in the second
preceding sentence is not permitted by applicable law, then each
indemnifying party shall contribute to the amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect
not only such relative faults but also the relative benefits of the
indemnifying party and the indemnified party as well as any other
relevant equitable considerations. The parties hereto agree that it
would not be just and equitable if contributions pursuant to this
Section 2.5(d) were to be determined by pro rata allocation or by any
other method of allocation which does not take into account the
equitable considerations referred to in the preceding sentences of this
Section 2.5(d). The amount paid or payable in respect of any Claim shall
be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any
such Claim. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(t) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
2.6 Underwritten Offerings. If requested by the underwriters for any
underwritten offering by the Holders of Registrable Securities pursuant to a
registration requested under Section 2, the Company shall enter into a customary
underwriting agreement with the underwriters. Such underwriting agreement shall
be reasonably satisfactory in form and substance to the Holders and shall
contain such representations and warranties by, and such other agreements on the
part of, the Company and such other terms as are generally included in the
underwriting agreement of such underwriters, including, without limitations,
indemnities and contribution agreements.
3. Rule 144 Reporting. With a view of making available to the Holders the
benefits of certain rules and regulations of the SEC which may permit the sale
of the Registrable Securities to the public without registration, the Company
agrees to use its best efforts to:
(a) Make a keep public information available, as
those terms are understood and defined in SEC Rule 144 or any successor
rule promulgated under the Securities Act, at all times after the
effective date of the first registration filed by the Company for an
offering of its securities to the general public;
(b) File with the SEC, in a timely manner, all
reports and other documents required of the Company under the Exchange
Act; and
(c) So long as Holder owns any Registrable
Securities, furnish to such Holder forthwith upon request a written
statement by the Company as to its compliance with the reporting
requirements of Rule 144 and of the Exchange Act at any time after it
has become subject to such reporting requirements.
4. Waiver. Except for the Subscription Agreement and Offeree Questionnaire
executed by each Shareholder, this Amended Declaration embodies the entire
agreement and understanding
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between the parties hereto and supersedes all prior agreements and
understandings whether oral or written, including without limitation the
Investor Rights Declaration. In consideration of the rights provided by this
Amended Declaration the Shareholders specifically waive all possible rights or
claims that they may have or raise based in any respect on the Investor Rights
Declaration.
5. General.
5.1 Amendments and Waivers. This Amended Declaration may be amended,
modified, supplemented or waived only upon the written agreement of the party
against whom enforcement of such amendment, modification, supplement or waiver
is sought.
5.2 Notices. All notices, elections, request, demands or other
communications hereunder shall be in writing and shall be deemed given at the
time delivered personally or by fax or upon receipt if deposited in the United
States mail, certified or registered, return receipt requested, postage prepaid
addressed to the parties as follows (or to such other person or place, written
notice of which any party hereto shall have given to the other):
(a) If to the Shareholders: To the address set forth on
the signature page below.
(b) If to Company: AspenBio, Inc.
0000 Xxxxxxxxx Xxx, Xxxxxxxx X-0
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxx, President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a Copy to: Krendl Krendl Xxxxxxxx & Way PC
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile : (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
5.3 Miscellaneous.
(a) This Amended Declaration shall be binding upon
and inure to the benefit of and be enforceable by the parties hereto and
the respective successors, personal representatives and assigns. No
Person other than a Holder shall be entitled to any benefits under this
Amended Declaration, except as otherwise expressly provided herein.
(b) This Amended Declaration shall be construed and
enforced in accordance with and governed by the laws of the State of
Colorado without giving effect to the conflicts of law principles
thereof.
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(c) The headings in this Amended Declaration are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof. All section references are to this Amended
Declaration unless otherwise expressly provided.
(d) This Amended Declaration may be executed in any
number of counterparts, each of which shall be an original, but all of
which together shall constitute one instrument.
(e) Any term or provision of this Amended
Declaration which is invalid or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such invalidity
or unenforceability without rendering invalid or unenforceable the
remaining terms and provisions of this Amended Declaration or affecting
the validity or enforceability of any of the terms or provisions of this
Amended Declaration in any other jurisdiction.
(f) The parties hereto acknowledge that there would
be no adequate remedy at law if any party fails to perform any of its
obligations hereunder, and accordingly agree that each party, in
addition to any other remedy to which it may be entitled at law or in
equity, shall be entitled to injunctive relief, including specific
performance, to enforce such obligations without the posting of any
bond, and, if any action should be brought in equity to enforce any of
the provisions of this Amended Declaration, none of the parties hereto
shall raise the defense that there is an adequate remedy at law.
(g) Each party hereto shall do and perform or cause
to be done and performed all such further acts and things and shall
execute and deliver all such other agreements, certificates,
instruments, and documents as any other party hereto reasonably may
request in order to carry out the intent and accomplish the purposes of
this Amended Declaration and the consummation of the transactions
contemplated hereby.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned have executed this Amended
Investor Rights Declaration as of the date set forth above.
ASPENBIO, INC.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
SHAREHOLDERS
-------------------------------- --------------------------------
Xxxx X. Xxxxx Xxxxxxx X. Xxxxxxxxx & Xxxxxxx X. Xxxxxx, Trustees
000 Xxxxx Xxxx Xxxxxxxxx-Xxxxxx Family Trust
Xxxxxxxxx, XX 00000 000 Xxxxxxx Xx.
Xxxxx, XX 00000
-------------------------------- --------------------------------
Xxxxxxx Xxxxxx Xxxx Xxxxxxxxxx
0000 Xxxxxx Xxxxxx 00000 X. Xxxxx Xxxxxx
Xxxx Xxxx, XX 00000 Xxxxxx, XX 00000
-------------------------------- --------------------------------
Xxxxxxx X. Xxxxxx Xxxxx X. Xxxxxxxxxx
0000 Xxxxxx Xxxxxx 000 00xx Xxxxxx
Xxxx Xxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
--------------------------------
Xxx Deal
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
--------------------------------
Xxxxx Deal
000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
--------------------------------
Xxxxx X. Xxxxxxx, trustee
Xxxxx X. Xxxxxxx Trust
00000 Xxxxxxxxxx Xxxxx
Xxxxx Xxx, XX 00000
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